239 F.

2d 547

E. L. FARMER & COMPANY, a corporation, Appellant,

v.
Marshall W. HOOKS and American Motorists Insurance
Company, Appellees.
No. 5386.

United States Court of Appeals Tenth Circuit.

Nov. 26, 1956.
Rehearing Denied Dec. 31, 1956.
Writ of Certiorari Denied March 25, 1957.
See 77 S.Ct. 669.

Clyde J. Watts, Oklahoma City, Okl., and Howard Barker, Fort Worth,
Tex. (Looney, Watts, Looney, Welch, Hamill & Nichols, Oklahoma City,
Okl., and Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth,
Tex., were with them on the brief), for appellant.
James E. Grigsby, Oklahoma City, Okl. (Howard C. Triggs, Oklahoma
City, Okl., was with him on the brief), for appellee Marshall W. Hooks.
Howard Davis and Robert S. Kerr, Jr., Oklahoma City, Okl. (Kerr, Conn
& Davis, Oklahoma City, Okl., were with them on the brief), for appellee
American Motorists Insurance Co.
Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit
Judges.
BRATTON, Chief Judge.

Marshall W. Hooks instituted this action against E. L. Farmer & Company, a

corporation, to recover damages for physical injury, together with expenses
incurred and to be incurred for medical and nursing care. The substance of the
cause of action pleaded in the complaint was that Kerr-McGee Oil Industries,
Inc., hereinafter referred to as Kerr-McGee, was engaged in rigging up a
drilling rig preparatory to the drilling of a well for oil and gas on a location in
Texas; that in connection therewith defendant unloaded from trucks at the

location of the well certain drilling equipment and material, including a steel
platform known as a 'monkey board'; that the defendant negligently and
carelessly leaned the platform against a small tree near the well site; that
plaintiff was employed by Kerr-McGee and was engaged with other employees
in rigging up the drilling rig; that plaintiff sat on the ground under the tree
against which the platform was leaning in order to be in the shade while eating
his lunch; and that the platform fell upon him and caused him serious and
permanent injury. American Motorists Insurance Company, the insurance
carrier of Kerr-McGee, intervened to recoup compensation payments made to
plaintiff.
2

The evidence adduced upon the trial tended to establish these facts and
circumstances. Kerr-McGee owned or controlled as lessee the premises at
which the accident and resulting injury occurred and it was preparing to drill
thereon a well for the production of oil and gas. Through use of a bulldozer, an
area approximately 150 feet square had been cleared of mesquite. A paved road
extending north and south was located east of the cleared area and motor
vehicles entered the area from the road. By means of trucks, B. L. Beakley
transported to the location the equipment and material to be used in rigging up
the drilling rig. The trucks were stopped in the northeast portion of the cleared
area. Pursuant to contractual arrangement with Kerr-McGee, appellant was
employed to unload the equipment and material at that place in the cleared area
and to move it into position as it became needed in the assembling of the rig. A
tree 12 or 15 feet in height was located east or slightly north of east of the well
site on the cleared area. The distance of the tree from the well site was
variously estimated at 100 to 200 feet. Sometime around 8:30 to 9:30 o'clock on
the day of the accident, employees of appellant, in the course of their
employment and through use of a truck equipped with a gin pole and winch
line, unloaded the steel platform to which reference has been made and leaned
it against the tree. The platform was approximately 8 by 10 feet in size, and its
weight was estimated at from 400 to 1600 pounds. The long side of the
platform rested on the ground. It was positioned at an angle of about 45
degrees, and it rested against the tree approximately 2 feet off center. When the
platform was placed in that position, an employee of appellant weighing from
180 to 190 pounds jumped upon it and unfastened it from the winch line. The
ground at that point was smooth and of caliche formation. It was the intention
of the employees of appellant to let the platform remain in that position until
the next day when it would be moved into its position at the derrick. It was the
established custom and practice among those engaging in assembling and
rigging up drilling rigs to lay the steel platform on the ground until it was
placed in its position at the derrick. The reason the employees of appellant left
this particular platform in a leaning position rather than laying it on the ground

was that it could be more easily or conveniently picked up when needed in the
assembling of the derrick. Twenty-two men were working at the location, 15
being employees of Kerr-McGee and 7 employees of appellant. Appellee began
working for Kerr-McGee that morning as a roughneck and he was participating
in the work at the substructure of the well site. About 12:30 o'clock, the
employees of Kerr-McGee were told that it was time for lunch. An automobile
belonging to appellee was standing slightly south of east from the tree, and a
water can containing drinking water was located about 25 feet southwest of the
tree. Appellee went to his automobile, got his lunchbox, and started for the
water can but did not get any water for the reason that time was short and
several men were ahead of him. He then went to the tree and sat down
underneath it in other to be in the shade while eating his lunch. The platform
fell and struck appellee in the back and he was seriously and permanently
injured. The court submitted to the jury the questions of negligence, proximate
cause, contributory negligence, assumption of risk, and unavoidable accident.
The jury returned a verdict for plaintiff; judgment was entered upon the verdict;
and defendant appealed.
3

The first ground of attack upon the judgment is that since appellant owed no
duty to furnish appellee a place at which to eat his lunch, he was a mere
licensee and appellant could not be liable for his injury. The substance of the
argument in support of the contention is that in respect to the place on the
premises at which the platform was leaned against the tree, appellee was a mere
licensee; that appellant owed him only the duty to refrain from active
negligence or wilful injury; that the evidence showed conclusively that
appellant did not demonstrate wilful, wanton, or reckless conduct toward
appellee in placing the platform against the tree; and that therefore the
judgment should be reversed and the cause remanded with directions to dismiss
the action. The accident and resulting injury having occurred in Texas, the law
of that state governs herein respecting the rights, duties, and obligations of the
parties, and the liability, if any, of appellant. and as we understand the law of
Texas, it is the general rule that a licensor assumes no duty toward a licensee
except to refrain from causing him injury by active negligence or wilful,
wanton, or reckless conduct. Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d
737. But here both appellant and appellee were on the premises as invitees of
Kerr-McGee. Appellee was not there pursuant to direction, consent, or other
permissive grant of appellant. There was no relationship of licensor and
licensee between them in respect to the occupancy of the premises. And there
was nothing in the relationship between them which operated to narrow or limit
to any extent the duty resting upon appellant to exercise reasonable care under
the circumstances for the safety of appellee while they were on the premises of
their common employer in connection with the discharge of their respective

duties. St. Louis Expanded Metal Fireproofing Co. v. Dawson, 30 Tex.Civ.App.

261, 70 S.W. 450; Snelling v. Harper, Tex.Civ.App., 137 S.W.2d 222; Larson
v. Tri-City Electric Service Co., 7 Cir., 132 F.2d 693; Constantino v. Watson
Contracting Co., 219 N.Y. 443, 114 N.W. 802; Samuel E. Pentecost Cost. Co.
v. O'Donnell, 112 Ind.App. 47, 39 N.E.2d 812; Fidelity & Casualty Co. of New
York v. Llewellyn Iron Works, 42 Cal.App. 766, 184 P. 402.
4

The judgment is challenged on the further ground that under the uncontroverted
evidence appellee was guilty of contributory negligence. It is conceded that the
charge given was a correct statement of the law of contributory negligence. But
it is said that if appellant be held negligent in leaning the platform against the
tree, appellee was negligent in sitting under the tree, or even near the platform;
that any negligence on the part of appellant furnished only a remote condition
for the accident; and that therefore the court should have directed a verdict for
appellant. It is the well established rule of law in Texas that ordinarily the
question of contributory negligence is by reason of the very nature of the
defense one of fact for the jury, and that it becomes a matter of law for the
court only when but one reasonable conclusion can be drawn from all the
testimony. City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159
A.L.R. 125; Texas & Pacific Railway Co. v. Day, 145 Tex. 277, 197 S.W.2d
332; Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585. It is the further rule in
that state that the mere fact that a person may expose himself to a danger does
not necessarily preclude recovery; and that even where a person has actual or
imputed knowledge of danger, a question of fact as to negligence is presented
unless it can be said as a matter of law that a person of ordinary care would not
have incurred the risk. Gulf, Colorado & Santa Fe Railway Co. v. Gascamp, 69
Tex. 545, 7 S.W. 227; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d
442. When all of the facts and circumstances in this case are viewed in the light
of these guiding principles, we are unable to say that as a matter of law
appellant was guilty of such contributory negligence as to bar recovery.

Complaint is made respecting the instruction given to the jury relating to

assumption of risk. The substance of the instruction was that if appellee knew
that a dangerous condition existed due to the manner in which the platform was
resting against the tree, and with knowledge of such apparent danger
voluntarily placed himself in a position of peril and as a consequence was
injured, he could not recover; but that if he was not apprised of the dangerous
condition or the presence of hazard, he could not be deemed to have assumed
the risk by sitting under the tree. The trend of the argument is that the defensive
rule of assumption of risk includes risks actually known to plaintiff and those
which should be known through the exercise of ordinary care; that any danger
inhering in the leaning position of the platform was apparent and was known or

should have been known in the exercise of ordinary care; and that by
voluntarily sitting under the tree, appellee inevitably assumed the risk as a
matter of law. In Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258
S.W.2d 60, the contention was categorically presented that the dangers
complained of were open and obvious; that plaintiff had opportunity equal with
that of defendant to know of such dangers; and that therefore the rule of
assumed risk precluded recovery on the part of plaintiff as a matter of law. And
the contention thus categorically presented was squarely decided, the court
holding in language too clear for doubt that the right of plaintiff to recover
cannot be defeated on the theory that he assumed the risk of injury unless it
appears that with full knowledge of the nature and extent of the danger
involved, he put himself in the way of the particular risk involved as the result
of a deliberate choice. And that general rule was expressly repeated in the later
case of Page v. Scaramozi, Tex.Civ.App., 288 S.W.2d 909. The case of McKee
v. Patterson, 153 Tex. 517, 271 S.W.2d 391, upon which appellant relies is
distinguishable. Without citing or referring to Triangle Motors of Dallas v.
Richmond, supra, the court there said in general language that the duty to
exercise ordinary care to keep premises in a reasonably safe condition does not
extend to invitees who know or should know of the existence of the particular
condition and who appreciate or should appreciate its dangers. And the court
further said that if, having knowledge of the dangers, an invitee exposes
himself to them he must take the premises as he finds them and there is no duty
upon the owner to protect him even by the use of reasonable precautions to
eliminate the hazard. But in that case it was crystal clear from the testimony of
plaintiff himself that he actually knew of the slick condition of the floor which
caused the fall and resulting injury and fully appreciated the danger of working
on it. The case did not turn in whole or in part upon the question whether the
reach of the doctrine of assumed risk includes one who does not actually know
of the danger but in the exercise of ordinary care should know of it. Another
case upon which appellant places strong reliance is Phillips Petroleum Co. v.
Gibson, 5 Cir., 232 F.2d 13. There plaintiff sued in the United States Court for
the Western District of Texas. The trial court submitted to the jury the question
of assumed risk. Plaintiff recovered. Citing McKee v. Patterson, supra, and
resting its conclusion in part upon the assumption of an apparent risk which in
the exercise of ordinary care plaintiff should have known, the Court of Appeals
reversed the judgment of the District Court and rendered judgment for the
defendant. And on certiorari, the judgment of the Court of Appeals was vacated
and that of the District Court was reinstated. Gibson v. Phillips Petroleum Co.,
352 U.S. 874, 77 S.Ct. 16, 1 L.Ed. 77. Paraphrasing somewhat the language of
the court in Triangle Motors of Dallas v. Richmond, supra, we think it is fairly
apparent that under the law of Texas the right of appellee to recover herein
cannot be defeated on the theory that in the exercise of ordinary care he should
have known of the danger inhering in the leaning position of the platform; and

that he deliberately put himself in the way of the particular risk as the result of a
deliberate choice.
6

Error is predicated upon the admission of testimony given by an expert witness.

The witness was a geologist and reservoir engineer. His studies of physical
sciences included the laws of physics, mathematics, chemistry, geometry, and
analytic geometry; and he had made a study of stresses, strains, leaning objects,
and falling objects. His testimony related in the main to the rotation of the
platform when it slipped down the tree. And he was permitted at one juncture
to state that one might sit at what seemed a safe distance from the platform and
still be hit as it fell. Expert testimony is appropriate when the subject of inquiry
is one which jurors of normal experience and qualification would not be able to
decide on a solid basis without the technical assistance of one having unusual
knowledge of the subject by reason of skill, experience, or education in that
particular field; the determination of the admissibility of expert testimony rests
largely in the discretion of the trial court; and when exercised within normal
limits, such discretion will not be disturbed on appeal. Brigham Young
University v. Lillywhite, 10 Cir., 118 F.2d 836, 137 A.L.R. 598, certiorari
denied 314 U.S. 638, 62 S.Ct. 73, 86 L.Ed. 512; Schillie v. Atchison, Topeka &
Santa Fe Railway Co., 8 Cir., 222 F.2d 810. It is enough to say without laboring
the question that we think there was no abuse of discretion in admitting the
testimony in question.

One ground of the motion for new trial was that the verdict of the jury was a
quotient verdict. Two affidavits were attached to the motion for new trial. One
was made by a claims representative working with the attorneys for appellant
in the trial and the other was made by one of the attorneys for appellant. From
such affidavits, considered together, it appeared that within a few minutes after
the return of the verdict the claims representative went into the jury room and
and picked up certain work sheets and scraps of paper, some of which were in
wastebaskets; that the claims representative delivered all of such work sheets
and scraps of paper to the attorney; that the attorney delivered them to the clerk
of the court; and that adding together twelve sets of figures appearing on such
sheets or scraps of paper and dividing the total by twelve results in a quotient of
$114,295, the amount of the verdict. Based upon considerations of sound public
policy, it is the well established rule that ordinarily jurors in the United States
Court will not be heard to give testimony, either oral or by affidavit, for the
purpose of impeaching the verdict returned where the facts sought to be shown
are such that they essentially inhere in the verdict. Hyde v. United States, 225
U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114; McDonald v. Pless, 238 U.S. 264; Clark
v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993; Stein v. People of
State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522; Johnson v.

Hunter, 10 Cir., 144 F.2d 565; Loney v. United States, 10 Cir., 151 F.2d 1;
Young v. United States, 10 Cir., 163 F.2d 187, certiorari denied, 332 U.S. 770,
68 S.Ct. 83, 92 L.Ed. 355; 334 U.S. 859, 69 S.Ct. 1533, 92 L.Ed. 1779;
Western Spring Service Co. v. Andrew, 10 Cir., 229 F.2d 413; Northern Pacific
Railway Co. v. Mely, 9 Cir., 219 F.2d 199; Armstrong v. United States, 8 Cir.,
228 F.2d 764, certiorari denied, 351 U.S. 918, 76 S.Ct. 710.
8

Appellant does not rely upon the testimony or affidavits of members of the jury
to impeach the verdict on the ground that it was reached through the quotient
method. Appellant relies upon so-called work sheets and scraps of paper with
figures made thereon by members of the jury in the course of their
deliberations. There is no present need to explore the question whether
evidence of that kind falls into the inadmissible class along with testimony or
affidavits of jurors. Assuming, without so deciding, that the evidence was
admissible, standing alone it was not sufficient to impeach the verdict. It is
essential that some feasible means be employed as a method of reaching a
figure upon which all members of the jury agree as just and reasonable
compensation. One of the methods sometimes used by jurors for bringing
themselves together in respect to amount is the process of addition and division.
And to add the several sums which the several jurors respectively think should
be awarded plaintiff and divide the total by twelve does not render a verdict
reached in that manner open to impeachment on the ground of being a quotient
verdict provided that after the mathematical computation has been made and
the quotient is known each juror for himself agrees severally and collectively
that the sum reached in that manner shall be carried forward into the verdict.
The vice which renders a verdict subject to impeachment on the ground of
being a quotient verdict is an agreement in advance to accept the amount as the
verdict, without subsequent consideration. Page v. Lockley, Tex.Civ.App., 176
S.W.2d 991, reversed on other grounds, 142 Tex. 594, 180 S.W.2d 616;
Hamilton v. Atchison, Topeka & Santa Fe Railway Co., 95 Kan. 353, 148 P.
648, L.R.A.1915E, 455; Talley v. Greear, 34 N.M. 26, 275 P. 378; Will v.
Southern Pacific Co., 18 Cal.2d 468, 116 P.2d 44; Ehalt v. McCarthy, 104 Utah
110, 138 P.2d 639; Board of Commissioners of Dona Ana County v. Gardner,
57 N.M. 478, 260 P.2d 682. There was no showing in this case that the jurors
entered into an agreement in advance that the quotient reached-- whatever the
amount--should be the verdict without subsequent consideration. So far as the
record discloses, the jurors may have agreed each for himself after the addition
and division had been completed that the quotient thus reached should be his
verdict. Therefore, the showing made was not enough to warrant impeachment
of the verdict on the ground that it was a quotient verdict.

Another ground of the motion for new trial was excessiveness of the verdict. It

is argued that the verdict is excessive and obviously the result of passion and
prejudice. The question whether a verdict is excessive and is the result of
passion and prejudice is one for the trial court to determine on motion for new
trial. The action of the court in granting or denying a motion for new trial on
that ground is not open to review on appeal except for abuse of discretion. And
ordinarily it will not be held on appeal that the trial court abused its discretion
in denying a motion for a new trial on such ground unless it affirmatively
appears that in respect to amount the verdict resulted from bias, prejudice, or
passion. Chicago, Rock Island & Pacific Railway Co. v. Kifer, 10 Cir., 216
F.2d 753, certiorari denied, 348 U.S. 917, 75 S.Ct. 299, 99 L.Ed. 719. This case
was carefully and painstakingly tried on a high level and the record is
completely barren of any persuasive indication of appeal to passion or
prejudice. We fail to find in the record any basis for the conclusion that the
court abused its discretion in denying the motion for new trial on the ground of
excessiveness of the verdict.
10

The judgment is affirmed.